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[2021] ZAGPPHC 360
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I.T v S (A254/2020) [2021] ZAGPPHC 360; 2021 (2) SACR 494 (GP) (25 May 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
PROVINCIAL DIVISION, PRETORIA
CASE
NO:
A254/2020
IN
THE MATTER BETWEEN:
I[…]
T[…]
Appellant
and
THE
STATE
Respondent
Coram:
Khumalo J
et
Matthys AJ
Heard:
19 April 2021
Delivered:
25 May 2021
Judgment
handed down electronically via email by circulation to the Registrar
of the Court, Appellant's Legal Representative and
the Office of the
Director of Public Prosecutions.
JUDGMENT
Matthys
AJ
A.
Introduction
[1]
This
is
an appeal
against the
sentence
of
10 years
imprisonment
imposed
in terms
of section
51(2)
(b)
of
the
Criminal
Law
Amendment
Act
105/97
(CLAA)
and
the
order made
in terms of section 50 of the Criminal Law Amendment Act (Sexual
Offences and Related
Matters)
32/2007
by
a
Regional
Court.
[1]
The
appellant
was
convicted
on
his
plea
of
guilty
to
a
charge
of
rape
in
contravention
of
section
3
of
Act
32/2007.
The
appeal
is
with
l
eave
granted by the Regional Court. Having received heads of argument from
both parties, it was deemed
prudent for
the matter to be considered
on the
papers
and
for oral argument to be
dispensed
with.
B.
Background facts
[2]
It is necessary to provide an account of the facts upon which the
conviction and sentence is based. In the appellant's plea
explanation
in terms of section 112(2) of the Criminal Procedure Act 51/77, he
admitted that on the 3rd of May 2019 he was at his
house at Tsakane
where he consumed alcoholic beverages. Whilst drinking he decided to
go to the premises of his neighbour with
the intention to rape her.
The complainant is a 65 year old female.
[3]
The appellant admitted that he armed himself with a panga and
proceeded to the complainant's house. There he threatened the
complainant with the panga in his possession and forced her to a
bedroom, where he ordered her to lie on a bed. He violently removed
the complainant's undergarments and took off his underpants. He
proceeded by·sexually penetrating the complainant's sexual
organ with his, without her consent. In the course of the commission
of the crime the complainant's daughter called her name from
outside.
The appellant stopped the sexual act and ran out of the house. He
confessed that he was at all relevant times, able to
comprehend the
unlawfulness of his conduct and its consequences, although he
consumed alcoholic beverages prior to committing the
crime. He
admitted to not having any defence on the charge convicted on.
[4]
During the sentencing proceedings, it was placed on record that the
appellant was born on the 11th of March 1960. He was 59
years old at
the time of the commission of the crime, unmarried and cohabitated
with his lady friend. He has no dependents, was
unemployed and has a
grade 8 level of education. He looked forward to the time when he
would be eligible to apply for an old age
grant. He suffers of asthma
and receives treatment in prison. It was reported to the probation
officer by those close to him that
the appellant uses the drug
referred to as "Nyaope". However, the appellant is in
denial of the abuse of a dependence
producing substance. He is also
reported to be a church goer and is said to be helpful within his
community. The appellant is not
a first time offender; he has three
previous convictions for crimes of dishonesty which transpired over
thirty years ago.
[5]
According to the probation officers report the appellant's lady
friend, his family and neighbors are all stunned by the fact
that he
raped the complainant as he admitted. The probation officer
recommended short term imprisonment as an appropriate sentence.
Notably there is scanty information in the record regarding the
complainant as a person and the impact that the crime may have
had on
her.
C.
Appellant's
grounds
on appeal
&
Respondent's
opposition
[6]
Briefly it is contended by the appellant that the term of 10 years
imprisonment imposed is shockingly inappropriate, given the
totality
of the mitigating factors placed on record. It is submitted
that the sentencing court failed to take due regard
of the
appellant's personal circumstances and the recommendation by
the probation officer. In particular it is submitted
that the
sentencing court misdirected by not taking account of the appellant's
advanced age and stating that he is not an older
person in terms of
the Older Persons Act 13/2006.
[7]
It is averred that the sentencing court misdirected its self in
finding that the appellant would not serve the entire minimum
term of
imprisonment prescribed and therefore a deviation from the minimum
sentence was not warranted. It is put forward that the
sentencing
court did not afford due weight, to the genuine remorsefulness of the
appellant as demonstrated by his guilty plea.
The appellant submits,
that the sentencing court also failed to differentiate between the
different degrees of seriousness of the
type of offence and
misdirected generally, in not finding substantial and compelling
circumstances to deviate from the prescribed
minimum sentence.
[8]
With regards to the ancillary order made, it is stated that the
sentencing court was wrong to order for the appellant's name
to be
entered in the register for sexual offenders in terms of section
50(1) (a) (i) of Act 32/2007, given that the conviction
is not
related to a sexual offence against a child or person who is mentally
disabled as provided by the legislation.
[9]
In. heads of argument counsel for the appellant, acknowledge that
direct imprisonment is appropriate·on the facts. However
it is
argued that the term of imprisonment imposed by the sentencing court
is disproportionate in light of the appellant's personal
circumstances, when the facts of the case is compared to sentences
imposed for similar transgressions in reported cases. Reference
is
made to the sentences in S v JN
2020 (2) SACR 412
(FB) and S v Hewitt
2017 (1) SACR 309
(SCA).
[10]
Counsel
for
the
respondent submitted
in
heads of
argument
that the aggravating
circumstances
of
the
case
and
the
interest
of
society
by
far
outweigh
the
mitigating
factors
presented
by the
appellant.
It
is
contended
that
the
sentencing
court
correctly
found that there are no substantial and compelling circumstances
in the
facts of the case that justify
a
deviation
from
the
prescribed
minimum
sentence.
I
t
is
submitted
that
the
requisite balance between the known triad of factors
relevant to
sentencing was reached
and that
the dictates of the authorities applicable to the minimum sentencing
regime was
observed by the sentencing court.
[2]
D.
Discussion
[11]
On
appeal,
the
settled
approach
to
be
adopted is
that
the
sentencing
task
resorts
primarily
within
the
scope of the trial court's discretion,
and a court
on appeal
shall
not
interfere
with
a
sentence so
i
mposed,
save
for
if
it
is
found that
the sentence is ominously inappropriate and or disproportionate to
the severity of the offence or that the trial
court did not exercise
it
discretion
judiciously.
[3]
[12]
In this
matter
we
are
deal
i
ng
with
a
highly
prevalent
type
of
offence,
which
no
doubt
impacts
adversely
on
the
moral
of
society.
The
consequential
hardships
occasioned to
victims
of
rape are
also
documented
in our
jurisprudence.
In S v
Chapman
[4]
the
Supreme
Court
of Appeal
as far
back as
1997
poignantly
held that
:
'Rape
is a very serious offence, constituting as it does a humiliating and
brutal invasion of the privacy, the dignity and the person
of a
victim. The right to dignity, to privacy and the integrity of every
person are basic to the ethos of the Constitution and
to any
defensible civilization.'
[13]
It is perplexing that the persistent warnings by the authorities,
civil society interest groups. and ordinary citizens against
rape,
are not heeded. Our courts impose robust sentences for convictions of
rape daily. Yet, the forever cries of women in our
country seeking
protection and justice for victims of rape is palpable.
[14]
Sexual violence is omnipresent in the country and the crime of rape
in particular is not the sort of transgression where undue
sympathy
with the offender, should be allowed to prevail over common sense and
the common good of society. It is therefore not
incorrect for a
sentencing court to afford due weight to the gravity of the offence
and the impact that the type of crime has on
society.
[15]
The facts of this matter hold aggravating features that cannot be
ignored. Firstly the appellant made it clear in his plea
explanation
that he is aware of the unlawfulness of rape and its consequences.
Nevertheless he selfishly had no regard or empathy
for the
complainant; he chose to sexually violate her at the risk of being
brought to justice. His conduct is more reprehensible
because he
armed himself with a dangerous weapon (a panga) so as to overcome any
resistance that the defenceless 65 year old complainant
could offer.
His conduct was premeditated and he took advantage of the fact that
the complainant, who was his neighbour, was vulnerable
as an elderly
female alone at home. She was expected to feel content and safe
without concerns that she would be harmed by a neighbour.
Instead the
appellant took advantage of her vulnerabilities and violated her
sexually, thinking that he could get away with his
callous criminal
conduct.
[16]
fortunately the. crime was detected by the complainant's daughter,
when the appellant ran out of the house. Therefore the argument
on
behalf of the appellant, to the extent that his guilty plea alone,
denotes genuine remorse is unpersuasive. In my assessment
of the
available evidence this argument is redolent of a further effort to
avoid the known penalty ordained by the legislature.
[17]
The
appellant
did
not take
the
sentencing
court
in his
confidence,
by
testifying
during
the
sentencing proceedings, to explain his supposed
remorse and
also explain, what
he
has
done since
the commission of
the crime,
which may
have
demonstrated
true penitence. On the issue of remorse it is fitting to refer to the
words expressed by Ponnan JA in S v Matyityi
[5]
explaining the
l
egal
position as quoted :
'In
order for the remorse to be a valid consideration, the penitence must
be sincere and the accused must take the court fully into
his or her
confidence. Until and unless that happens, the genuineness of the
contrition alleged to exist cannot be determined.
After all, before a
court can
•
find that an
accused person is genuinely remorseful, it needs to have a proper
appreciation of, inter alia: what motivated the accused
to commit the
deed; what has since provoked his or her change of heart; and whether
he or she does indeed have a true appreciation
of the consequences of
those actions.'
[18]
The
attack on
the
sentencing
court's
finding
made that
the
appellant
at the age
of
59
years is not an older person in
terms of
the Older Persons Act
13/2006 is
unfounded.
An older
person as defined in the Act means a person who in
the case of
a male, is 65 years
of age or
older and
in the
case of a
female,
is
60 years
of
age and older.
[6]
The 65 year
old
complainant however is an older person within the definition of Act
13/2006.
The age
of
the
complainant
brings
into
play
the
plight
of
older
persons
in the
context
of
abuse,
which
is
often
overlooked.
Therefore I
deem
it
prudent
to
restate
certain
applicable
provisions of Act
13/2006
which may prove to be insightful in the context of the issues in this
matter.
Section
4 Application of the Act
(1)
The rights that an older person has in terms of this Act
supp
l
ement
the rights that an older person has in terms of the Bills of
Rights.
(2)
All organs
of state and all officials, employees and
representatives of organs of state must respect,
protect and promote
the rights of older persons contained in this
Act.
(3)
This Act binds both natural and juristic persons to the extent
that
it is applicable, taking into account the nature of the right and the
nature of any duty imposed by the right.
Section
5 General principles
(1)
The general principles set out in this section guide-
(a)
The implementation of all
legislation applicable to older persons,
including this Act; and
(b)
All proceedings, actions and decisions by any organ of state
in
any matter concerning an older person or older persons in general.
(2)
All proceedings, actions or decisions in a matter concerning an
older person
must-
(a)
respect, protect, promote
and fulfil the older person's rights, the
best interests of the
older
person
and the rights and principles set out in this Act, subject
to any lawful limitation;
(b)
respect the older person's
inherent dignity;
(c)
treat the older person
fairly and equitably; and
(d)
protect the older
person from unfair
discrimination on any ground, including
on the grounds
of the health status or disability of the
older person.
Section
30
(4)
If a court, after having
convicted
a
person
of
any
crime
or
offence
. finds that the convicted
person has abused an older person in the commission of such crime or
offence, such finding
must
be regarded
as
an aggravating
circumstance
for
sentencing
purposes.
[My
emphasis]
[19]
It is clear from the legislation quoted that in our democracy the
"best interest of an older person" is of paramount
importance in any matter concerning an older person. It is one of our
utmost responsibilities to treat older persons with reverence,
promote their status, rights, wellbeing and safety given attendant
weaknesses. Older Persons walk before us, have given much and
play an
enduring role in making possible the life enjoyed today. It is
in the stated context that I find the argument made
for the appellant
that the sentencing court did not differentiate between the different
degrees of seriousness of the type of offence
rather insensitive and
unsound.
[20]
The
offence
is
serious
by
its
prevailing
facts
and
the
rape
of
the
complainant
aged
65
years,
remains
an
aggravating
circumstance
as provided
for
in
section
30(4)
of
Act
13/2006.
.
In
this
matter
the
unsuspecting
complainant
was
an
easy
target
of
the
appellant's
violent
conduct.
Further
the
argument
made
for
the
appellant
with
reference
to
S
v
JN
and
S v
Hewitt,
in support
of
the
notion
that
the
sentence
imposed
induces
a sense
of
shock,
is devoid
of
persuasive
power.
[7]
That
is so
because the
facts
of the
cited cases
differ vastly
from the
facts
at
hand. Sentencing trends
hold
limited value
and
should
merely be
seen
as
a
guide.
I
t
cannot be
allowed
to
take
away
the
sentencing
courts judicial
discretion
informed
by the
peculiar
facts
of the
case
before
i
t.
[21]
The
consideration by the sentencing court in finding that a deviation
from the prescribed
minimum
sentence
was
not
warranted,
due
to
the
prospects
of
the
appellant's
early
release on parole was indeed misguided, as contended for the
appellant. The prospects
of.
an
offender's early release on parole is no
justification
for not
finding that there are no
substantial
and compelling circumstances for purposed of the CLAA. Although there
are circumstances in which offenders are released
on parole, once
sentenced to imprisonment
by
a
court,
the
offender
is
in
principle
required
to
serve
the
full
term
of
imprisonment
imposed.
[8]
No
offender
has
a
right
to be
released
on
parole;
it
is
a privilege
which
is
an
integral
part
of
the
sentencing
regime.
If a
prisoner
satisfies
the prison
authorities
that
he has been
rehabilitated
and
is not a
danger to society, there
is
no reason
why he should not benefit from the parole system.
[22]
The
granting of parole however resorts within the powers of the executive
authority and
a
court
should not
attempt
to by-pass
the
exercise of
that
power
.
[9]
I
n
a
number
of
decisions our courts held that the possibility of offenders being
released on parole should
not be
invoked
by courts
to
impose
lengthy
sentences
to
ensure
that
prisoners
stay
in prison
longer.
[10]
The
sentencing
court
i
s
best
to
confine
i
ts
self
to
the
objectives
of sentencing and the known triad of factors
relevant to
the case before
i
t.
The misdirection by the sentencing court in
this case
as highlighted, is however not of a material nature so
as to
vitiate the exercise of the discretion in imposing the sentence under
discussion.
[23]
In the sentencing task there is a delicate balance to be achieved
between the nature of the crime, the personal circumstances
and
characteristics of the offender and the interests of society in
the effective punishment of offenders, not forgetting
the interest of
the victim that may differ from that of society as a whole. The
desired balance to be achieved in arriving at a
just and
proportionate sentence can only be attained if; the sentencing court
is fully informed on the diverse interests mentioned.
Having perused
the record of these proceeedings it is a matter of grave concern to
have found that very little to no information
were presented by the
prosecution, in the form of a medico-legal report (form JBS) and a
victim impact statement (VIS).
[24]
There is
an
abundance
of case law
in
which
our courts bemoans he
failure
by prosecutors
to present
evidence
relevant to
the
interest of
complainants.
[11]
I
t
cannot
be
emphasised more
that the
i
mpact
that
crime
has and the views
of
complainants,
especially in relation to violent crime such as rape, is a pivotal
factor within the dictates of fairness, to be taken
regard of during
the sentencing stage.
The reasons
for the failure by
the
prosecution
in
the
Regional
Court,
to
present
a
form
J88
and
a
VIS
are
not
apparent from the record.
However
given the acknowledged devastate of sexual transgressions
in the
country,
prosecutors
have
a
duty
towards
complainants
and
the
court, to
ensure that the views of complainants are heard during
sentencing.
[12]
[25]
In adopting
the
needed
victim-centred
approach
there
is also
nothing
that
prevents
a
presiding
officer to call for the presentation
of a
VIS.
[13]
I
t
is
regrettable that
no effort
was made in this case to hear evidence
pertaining
to the
physical,
psychological,
and social
or any
other consequences the crime may have had on the elderly complainant.
It
should
be reminded
that although
our courts
do not generally question the adverse
impact that
rape
has
on
a
victim,
the
trauma
occasioned
in
each
case
of
rape
differs
and
is
as unique
as the
character
of
each
complainant.
Effort
is
vital to
give
individual
complainants
a voice
and
it
should
not
be
expected
of
the
sentencing
court
to
make
assumptions
as
to
the
victim's
circumstances
.
[14]
This
is
necessary
to
individualize
the
sentence
and to give effect to a victim-centered approach in sentencing.
[26]
It has been authoritatively
acknowledged
that
the
concept
'substantial
and
compelling
circumstance'
in
the
context
of
the
provisions
of
CLAA,
denotes
an
amalgamation
of
factors
that
defies
precise
definition.
In general,
the
existence
of
such
weighty
circumstance
will be present when it is
found that
the case is one in which the prescribed
sentence
would be
unjust or disproportionate to the crime, the offender and the
legitimate needs of society.
[15]
This is not such a case.
[27]
In
cases of
serious crime
i
t
is
permissible
for the
personal circumstances
of
the
offender, to
subside
into the
background.
As was
held
by the Supreme
Court of
Appeal in S v
Hewitt
(supra) scrupulous
care must
be
taken
not
to
over-emphasise
the
appellant's personal
circumstances
without balancing
those
considerations properly, against
the very
serious
nature of
the
crime
committed; the
aggravating
circumstances
and
the
consequences
for
the
victim and
the
interests
of
society.
[16]
The
appellant's
personal circumstances are by
far
outweighed by
society's
demands for protection through the
.
imposition
of a deterrent sentence.
[28]
After a conscientious consideration of the magistrate's reasons on
sentence, it cannot be said that she in any material manner,
misdirected herself in the execution of her judicial discretion.
Having applied my mind to the facts, I am convinced that the
sentencing court correctly found that there is no weighty
justification for a deviation from the minimum term of imprisonment
prescribed.
No injustice will result should the appellant be ordered
to serve the sentence imposed.
[29]
Regarding the appellant's grievance against the order made by the
sentencing court, in terms of section 50 of Act 32/2007 the
section
provides:
50.
Persons whose names must be included in Register and related matters
(1)
The particulars of the following persons must be included in the
Register:
(a)
A person who in terms of this Act or any other law-
(i)
has been convicted of a sexual offence against
a child or a person
who is mentally disabled
[My
emphasis]
[30]
Relevant to this issue is the prosecutor's address to the effect that
the complainant is "mentally disturbed". It
is not clear
from the record what is meant by the term "mentally disturbed"
used by the prosecutor, since there is no
evidence on record capable
of proof that the complainant is a person who is mentally disabled as
contemplated in section 1 of Act
32/2007. The appellant was not
charged on the basis that the complainant is a person with a mental
disability. The jurisdictional
facts required for an order in terms
of section 50 (1) (a) (i) of Act 32/2007 are not present in this
case. There is thus merit
in this ground on appeal and the order made
stands to be set aside.
[31]
In
this.
regard
it
is
necessary
to
revert
to
the
Older
Persons Act
13/2006.
Section
31
of the
Act
provides
that
the
Minister
must
in
the
prescribed
manner
keep
a
register
of
persons
c
o
nvicted
of the
abuse
of
an older
person
or
of
any
crime
or
offence
contemplated in section 30(4). Having regard to section 31 read with
regulation 23 of the
regulations
issued
by the
Minister
of
Social
Development
under
section
34
of
the
said Act,
the crime and the appellant's personal
details are
required to be
entered in
the
register
of
abuse
of
older
persons
in the
prescribed
form.
[17]
[32]
Accordingly the following order is made.
a.
The appeal against sentence is dismissed.
b.
The sentence of Ten (10) years imprisonment is confirmed.
c.
The order in terms of section 50 (1) (a) (i) of Act 32/2007 is
set aside.
d.
The prosecution is ordered to facilitate for the appellant to
be brought before the sentencing court by requisition
from the prison where he is held and
for the consequences of section 31 of the
Older Persons
Act 13/2006 to be explained to him by the court and for the crime and
the appellant's personal details to be reported
and entered in the
prescribed form in the Register of Abuse of Older Persons held by the
Department of Social Development
Matthys
R
Acting
Judge
·
Of
the
High Court of South Africa
Gauteng
Local Division (Johannesburg)
I
concur and it is so ordered.
Khumalo
N
Judge
Of
the High Court of South Africa
Gauteng
Provincial
Division
(Pretoria)
Appearances
·
Counsel
for the appellant: Adv LA Van Wyk [Legal Aid SA -Pretoria]
Counsel
for the state: Adv MJ Nethononda [DPP Pretoriaj
[1]
Acting Regional Court Magistrate Mrs Makamu presiding at Tsakane.
The appellant was at all times legally
represented.
[2]
Referring to S v Kumalo
1973 (3) SA 697
(A) ;S v Malgas
2001 (1)
SACR 469
SCA ;S
v Roslee
[2006] ZASCA 14
;
2006 (1) SACR 537
SCA
[3]
S
v
Malgas
2001(1)SACR469(SCA)at
4780
[4]
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) ;Also see S v Nkunkuma & others
2014
(2) SACR
1
68
SCA para 17
[5]
2011[1] SACR 469[SCA]
[6]
Section 1
of Act
13/2005
[7]
Citation para 9 herein. In S v Hewitt a retired tennis player and
instructor, was convicted on two counts
of rape of
two girls aged about 12 and 13 years and one count of indecent
assault of a
1
7
year old girl. The offences were committed about three decades ago
and the accused was convicted in 2015 at the age of 75 years
and
sentenced to an effective six years' imprisonment;
In S V JN
the appellant was convicted of the raped of a 9-year-old girl .He
contended that the court a quo had erred in not taking
into
consideration the fact that he
was, at
the time of sentencing, a 71-year-old first offender who had pleaded
guilt
y
.
The
sentence of life imprisonment was set aside on appeal and replaced
with 10 years' imprisonment.
[8]
Section 73(1) of the Correctional Services Act
111/1998
provides that subject to the provisions of this Act - (a) a
sentenced prisoner remains in correctional center for the
full
period of sentenc
e
.
[9]
S v Smith 1996(1) SACR 250 (E)
[10]
S v
Matlala
2003(1)
SACR
80(SCA);S
v
Khumalo
en Andere
1983(2)
SA
540
(N)
,Sv
Leballo
1991 (1)
SACR 398 (B)
[11]
Monageng v S (590/06)
[2008] ZASCA 129
(1 October 2008)
[12]
See
the
NPA
directives
issued
in terms
of
section
66(2)
of
the
Criminal
Law
(Sexual
Offences
and
Related Matters) Amendment
Act,
32 of 2007
at para
M
providing- All
complainants
and/or
s
econdary
victims
(or
appropriate others such as a parent or guardian in the event of a
child)
should
be informed of
their
right to
provide
the
prosecutor
with
relevant
information
pertaining
to
the
impact
of
the
offence.
Should
they
choose
to
make
a
Victim
I
mpact
Statement
(VIS)
or
statement
regarding
sentence,
the
prosecutor should make an attempt to have this handed in by consent
of the accused (complying with the provisions of section
212 or 213
of the CPA) or call the complainant
I
witness
to testify thereto.
Section
70(3)
of
the
Child
Justice
Act,
75 of
2008,
is
an
exception
to
section
212
and 213,
as
in terms
of this
section
the prosecutor can hand in a VIS if the accused is a child and the
contents are not disputed
[13]
Section 274 of the Criminal Procedure Act
51/77
provides
(1) a
court
may,
before passing sentence, receive such evidence as it thinks fit in
order to inform itself as to the proper sentence to be
passed.
[14]
S
v
Vilakazi 2009(1) SACR 552 SCA
[15]
See Tafeni v S [2016] JOL 34336 (WCC).
[16]
Also see S v Salzwedel & others
1999 (2) SACR 586
(SCA) paras 12
and 18; S v Combrink
2012 (1)
SACR 93
(SCA) pars 22-24; S v Sinden
1995 (2) SACR 704
(A) at
708F-709B.
[17]
Form
14
in the regulations
Government
gazette
No. 33075
(1 April
2010).